LORD ROMILLY, M.R.

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DAW v. ELEY.

Dec. 10, 14. Contempt of Court-Publication of Matter relating to Question in Issue-Solicitor.

The solicitor of a defendant wrote anonymous letters to a newspaper, impeaching the novelty and usefulness of a patent claimed by the plaintiff, and the subject of the suit. It was ordered that the solicitor should be committed for contempt of Court: the order not to be enforced in case he inserted an apology in the newspaper and paid the costs of the motion.

Semble By publishing controversial letters in reply, or by delay, the plaintiff would have lost his right to complain.

1868,

On the 19th of September, pending the above suit, an article appeared in the Volunteer Service Gazette, headed "The Cartridge of the New Military Rifle," which contained the following passage: "We think that enough is stated in the report to shew that at present neither the Boxer nor the Daw Cartridge sufficiently satisfy the primary conditions of a cartridge, -viz., absolute safety, for, singularly enough, this very first element in a cartridge was not expressly named, but was taken to pass under the head of general serviceability; and, under this head the committee state, that as the anvils in both cap-chambers rest on the percussion powder in the caps, therefore, both cartridges are equally liable to accidental explosion."

In the following number, published on the 26th of September, a letter appeared in that journal, signed Copper Cap," relating to the same matter, the material parts of which are as follows: "The cartridge submitted by Mr. Daw to the committee was, as to its case, made of thin brass folded on a mandril, having the edges (one overlapping the other) soldered. Metal cases brazed, soldered, overlapping in coils. or drawn, had all been in public use before Mr. Daw's patent of March, 1867. A M. Rochatte, of Paris, in January, 1867, obtained provisional protection for a patent in England for the very same soldered case as submitted by Mr. Daw to the committee, except that M. Rochatte lined his case with paper. This patent, however, was allowed NEW SERIES, 38.-CHANC.

to lapse. It is a brass tube soldered transversely up the side. The object of the lining is to protect the metal from the corrosive action of the powder. This is done in the Boxer by a coating of shellac. Now, as to safety the (so-called) Daw cartridge when new acts admirably. But let them be kept in store for any considerable time, and the powder will eat into the metal and render the discharge really dangerous in some breech-loaders, and I may name the Government Snider in particular. I have seen the experiment tried, and every single cartridge burst that was taken from a box that had been in stock several months, whereas only one burst of an equal number of cartridges just purchased of Mr. Daw, and which were fixed for the same rifle. This disadvantage attends all metal cartridges. which have no lining. But, independently of this, the principle on which the present Boxer service cartridge is made renders it impossible for the present cartridge-case to burst in the discharge."-"I wish it to be understood that I do not desire to raise the question of invention, but of the relative safety of the cartridges named those who have studied the question must admit that the present Boxer service cartridge is by far the best cartridge for breech-loading rifles in Europe, and the government committee very properly so decided."

Other letters appeared in the Volunteer Service Gazette on the same subject, some from a Mr. Walker advocating the use of the Daw cartridge, and Mr. Daw sent the following letter to the editor of that newspaper:

"Sir,-Every honest man feels repulsion in noticing anonymous letters, and the public generally are not prone to place much reliance in their contents. The communications from Copper Cap,' in your paper of the 26th ult., may have been written by some rival cartridge-manufacturer, some interested official, or it may be some unscrupulous lawyer or agent. It is certainly not likely to have been penned by any disinterested authority, as the subject shews a strong bias in a particular direction. Under the constant condition of attack to which my interests are subjected in a certain few of the London journals whose sympathies appear to be always adverse to my welfare, it will be quite sufficient for

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me on the present occasion to state that the asseverations of 'Copper Cap' as to the superiority of the Boxer cartridge as to safety are, like his other detrimental statements, without foundation; and I refer your readers, as I do all the world, to the report of the Ordnance Select Breechloading Committee for their admissions of the perfect endurance of my cartridges sent into the War Office competition. With respect to the alleged matter of M. Rochatte's pretended patent, that will be elucidated by the proceedings taken by me against Messrs. Eley Brothers when the case comes for hearing in November next before the Master of the Rolls. So oft repeated as these injurious statements have been permitted, I can only hope that the press will hereafter do the justice of exercising a legitimate control over unsigned letters having no other object than to create prejudice."

The editor declined to insert that letter, either in the body of the paper or as an advertisement, but a leading article appeared in the issue of the 24th of October, 1868, on the subject.

In the same number there was another letter signed "Copper Cap," of which the following are the material extracts :

"At this time Mr. Daw was the proprietor of the Schneider patent (September, 1861) and made cardboard cartridges only. with the same base anvil, &c. as is now used. Some months after the issue of the government circular 'an eminent engineer' gave it as his decided opinion through the public press that the metal cases used by Colonel Boxer were absurdly useless, and spoke in the highest praise of the Daw paper cases for military purposes, and boldly stated that the government would save at least 100,0007. per annum by the use of the Daw paper cartridge. He considered Mr. Daw as one of the 'perishing in the cold, neglected and unrewarded inventors,' because government did not adopt Mr. Daw's paper-cased cartridges. Mr. Daw could then have had no idea of any other cartridge. In January, 1867, however, a M. Rochatte (a Frenchman) obtained provisional protection for a metal-cased cartridge, lined with paper, with the overlapping joining closed with solder. Early in February, 1867, M. Rochatte shewed and

left with Mr. Daw samples of his metal-soldered cartridges (see his letter in the Army and Navy Gazette, April 25th last, p. 263). In March, 1867, Mr. Daw applied for a patent for a metal cartridge-case with the overlapping edges soldered in the same manner as Rochatte's, but without the paper lining, and he used the Schneider base and anvil.” -"So that Mr. Daw appears to have sent for competition a cartridge of which the base was entirely Schneider's, the brass-soldered case Rochatte's, the projectile and method of fixing it Colonel Boxer's; and being the only competitor besides Colonel Boxer, he took the 400l. prize. Palmam qui meruit ferat."

Mr. Daw sent the letter which had been rejected by the Volunteer Service Gazette to the Cosmopolitan newspaper, when it was inserted, and some comments made on the subject.

On the 7th of November, 1868, a letter appeared in the Cosmopolitan from Mr. Walker, stating that he had been informed that Mr. Collette, the solicitor of the defendant in Daw v. Eley, was the author of the letter signed "Copper Cap."

Correspondence then took place between Mr. Daw's solicitor and Mr. Collette, who refused to apologize in the newspapers, on the ground that his letters were fair comments on a public matter in answer to an article in the Volunteer Service Gazette.

Mr. Daw now moved to commit Mr. Collette for contempt of Court.

Mr. Jessel and Mr. Russell Roberts, for the motion, said, the letters complained of impeached the novelty and usefulness of the plaintiff's invention, the very matters in question in the suit, the result of which they were calculated to prejudice, more especially from their being written anonymously as if by a disinterested person. They relied on

In re St. James's Evening Post, 2 Atk.
469.

Farley's case, 2 Ves. sen. 520.
Lechmere Charlton's case, 2 Myl. & Cr.

316; s. c. 6 Law J. Rep. (N.S.)
Chanc. 185.

Tichborne v. Mostyn, 2 Law J. Notes of Cases, 249; s. c. 15 W. Rep. 1072.

Mr. Southgate and Mr. Langley, for Mr. Collette, said the letters complained of were fair comments on public matter, strictly in reply to other articles in the newspaper. They contained no information obtained by means of the suit. Mr. Daw had himself written to the newspapers, and had allowed the matter to proceed after he might have known who was the author of the letters, and had therefore lost whatever right he had in the matter against Mr. Collette.

The MASTER OF THE ROLLS said-I will read the letters before I dispose of the matter finally. But as it strikes me at present, I think the conduct of Mr. Collette cannot be defended. The principle is quite established that no person must do anything with a view to pervert the sources or the proper flow of justice. In fact, no one ought to make any publications or to write anything which would induce the Court or which might possibly induce the Court, or the jury, whichever tribunal will have to try the cause, to come to a conclusion other than that which is to be derived from the evidence in that cause, and certainly no one ought to prejudice the minds of the public beforehand by mentioning circumstances relating to the case.

Now, if that is done with the intention of perverting the ends of justice, there is no question that the Court could stop it, and very often it will judge for itself what are the fair inferences to be derived from the publications which appear. But it must also go beyond this. It must stop the publication of these things where the evident result would be to affect the administration of justice, though that might not have been the direct intention of the person who did it.

In this case the main question is, whether Mr. Colette was justified in writing his letter of the 26th of September, which is the first letter on the subject. There is a leading article before that upon the subject, but the leading article does not say a word as to the priority of any invention. It does not say anything with respect to the validity of Mr. Daw's patent, whether in fact he had been forestalled by any one before him; it does not mention

anything relating to it. But Mr. Collette's letter treats of little else, as it appears to me, with the exception of this thing at the beginning: "The writer of the article in your last issue, under the heading 'The Cartridge of the New Military Rifle,' can have scarcely given the subject a practical consideration when he places the Daw cartridge in comparison with the present Boxer service cartridge, particularly when he says that the Daw cartridge approaches the first essential more nearly than the Boxer, the first essential being safety." If it had stopped there (and I am not now considering the position Mr. Collette filled), and it had been nothing more than this, or an enlargement upon it, it might have been said that it was a fair discussion of a public question of the merits between two particular patents. [The Master of the Rolls read extracts from the first letter, and proceeded]―These are things expressly stated in the letters to shew that Daw's patent cannot be original; and the writer of the letter seems to feel that very strongly, for at the end of it he makes this observation: "I wish it to be understood that Į do not raise the question of invention, but of relative safety of the cartridges named. Those who have studied the question must admit that the present Boxer service cartridge is by far the best." Can anybody doubt, if I were persuaded that the whole of that statement was true, that it would very seriously affect the validity and the originality of Mr. Daw's patent? Then, it is to be observed that this letter is put in, not by a mere stranger, who might say that he really knew nothing at all about the suit, but it is put in by the solicitor of the gentleman who is opposed to Mr. Daw. Surely that is a very strong feature in the case. He must wish that his client should succeed, and I venture to say that there is no solicitor in the court who would not in the same position feel the same thing; and it is impossible that a solicitor can safely act in a matter of this description in writing an article in a paper which, if believed, must have a beneficial effect upon his client, and afterwards say, "I had no intention of influencing the result however much I may wish for it." It must be regarded as an endeavour to interfere with

the due administration of justice. Where is the line to be drawn? It is highly important that the Court should not allow steps of this sort to be taken by the officers of the court in causes in which they are engaged which possibly may have an effect favourable to their client or unfavourable to the other side; and I may further say that if the Court is to go minutely into every sentence of a letter which is written in a public newspaper, to say this is questionable, and that is doubtful, and the like, a task and a duty will be imposed upon the Court which it will be impossible to perform. There is one distinct line drawn, which is this, that gentlemen who are concerned for contending clients in this court, whether solicitors or counsel, should abstain entirely from discussing the merits of those questions in public print. If they do it at all they ought to put their names to their communications; but to let the public suppose that it is merely done by a person who takes a great interest in matters of this description and has great knowledge of the subject, and that he discusses the question from a public point of view, when if the facts were known, he is the solicitor of the defendant and has the strongest possible interest in his success, appears to me conclusive upon this point.

The other point upon which I wish to read these papers is this: Unquestionably, if a person submits to have the matter discussed in the public papers and enters into the arena of public discussion, he cannot afterwards complain that this has been done. The Court will say to him, "As you have thought fit to discuss it there you have accepted another tribunal."

I want to look at the affidavits and the papers to see how far Mr. Daw really has accepted that tribunal and transferred the discussion to another court; and for that purpose I should like to know how soon Mr. Daw was aware that Mr. Collette had been the author of these letters.

Dec. 14.-The MASTER OF THE ROLLS said: I have little to add in addition to what I stated on Friday when I explained the reasons which induced me to take the course which I now intend to take.

The perusal of the articles confirms me

in the view I have taken; and it must be admitted by everybody to be an extremely improper thing for the solicitor in the cause to write an article in a paper which may either directly or indirectly be believed, and which may influence the suit upon which he is engaged. I do not believe it was done with any improper motive, but it was done with great want of judgment.

My opinion, from reading these papers and the comments and remarks in the anonymous publications in the Volunteer Service Gazette is that they have a direct tendency to influence the suit, and therefore I am obliged to make the order that I have been obliged to make on former occasions, and which was made by the present Lord Chancellor in the Titchborne case. I shall make the same order as before, but I shall direct that it shall not be acted upon for a fortnight, in order that Mr. Collette may take the opinion of a superior tribunal upon the subject, or he may make an apology and pay the costs of the motion. It appears to me, to say the least of it, to be a serious error of judgment on the part of Mr. Collette, and it is necessary that the Court should interfere, and I must make the order which I make generally. The order is, that Mr. Collette stands committed for contempt of this Court, and I desire that the parties will understand that it is my desire that the order shall not be enforced for a fortnight, in order to enable Mr. Collette to take an opinion of a superior tribunal if he should be so advised, or in case he should desire to make an apology for the error which he has committed in publishing these things, then he would pay the costs of the motion, and for that reason I desire that the order may not be enforced for a fortnight. I am obliged to say a fortnight; I would have given a longer time, but there is not a longer time before Christmas.

Solicitors-Mr. H. H. Geach, for plaintiff; Messrs. Prichard and Collette, for defendants.

Agreement for Lease-Specific Performance- Contract by Director of a Company for his own Benefit.

In 1840, a railway company, by instru ment under seal, agreed to grant to G. and P, their executors, administrators or nominees, a lease of an hotel at one of their stations for a term of ninety-nine years; and by the same instrument it was agreed between the parties that the said G. and P. should have the occupation of the refreshment-rooms at the same station, subject to the same restrictions and provisions as related to the carrying on the business of the hotel, both as regarded the quality and price of provisions and the management thereof. The lease of

the hotel was executed: it made no mention of the refreshment-rooms, which, however, were occupied by G. & P. The plaintiff was the assignee of G. & P. of the lease, and all their interest under the agreement of 1840, and occupied the refreshment-rooms :-Held, that he was entitled to have a deed executed by the company granting him the occupation of the refreshment-rooms, subject to the restrictions and provisions in the agreement mentioned.

S, a director of a railway company, had entered into an agreement with the company for the occupation by a firm, of which he was a member, of premises belong ing to the company, and had assigned his interest under the agreement to the plaintiff: Held, that the plaintiff was in the same position as S, and therefore could not maintain a bill for specific performance of the agreement.

By an agreement, under the seal of the company, made in the year 1840, the defendants, the Great Western Railway Company, agreed to grant to Thomas Grissell and Samuel Morton Peto, their executors, administrators or their nominees, a building lease of some land situate near their station at Reading, for a term of ninety-nine years, Messrs. Grissell & Peto undertaking to build an hotel thereon. It was, amongst other usual con

ditions, stipulated by the agreement that in the lease should be contained a proviso, that if at any time or times during the term the business of an hotel should not be carried on upon the premises, or if the same should not be carried on, managed or conducted to the satisfaction of the railway company, then it should be lawful to and for the said company by notice in writing under their corporate seal, or under the hands of any three or more directors of the said company, of such default or mismanagement, and if the same should not be remedied in three months, that then the London board of directors should have the power wholly to determine and put an end to the lease. The last clause of this agreement was in the following words: "It is further agreed between the said parties that the said Thomas Grissell and S. M. Peto shall have the occupation of the refreshment-rooms at the Reading Station, subject to the same restrictions and provisions as relate to the carrying on the business of the hotel, both as regards the quality and prices of provisions and management thereof."

Messrs. Grissell & Peto were let into possession of the premises comprised in the agreement, including the refreshment-rooms (which, for the sake of distinction, are called the upper refreshment-rooms); and, in 1842, a lease was in pursuance of the agreement granted them of the hotel, but the lease did not include the upper refreshment-rooms.

In 1860, the hotel and other premises comprised in the lease of 1842, and all the estate and interest of the assignors of and in the refreshment-rooms at the Reading Station, under or by virtue of the agreement of 1840, or otherwise howsoever, together with the full benefit of the agreement, were assigned to the Messrs. Simonds, of Reading, who had been for some time undertenants of the hotel and the upper refreshment-rooms.

In the year 1849, the Messrs. Simonds, at an expense of 2007., erected other refreshment-rooms at the Reading Station (called the lower refreshment-rooms), and the plaintiff alleged in the bill that it was agreed between the Messrs. Simonds and the railway company that the Messrs. Simonds